2002 Supreme(SC) 1021

2002(7) Supreme 163
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
U.C. Banerjee & D.M. Dharmadhikari, JJ.
Mohan Singh -Appellant
versus
Prem Singh & Anr. -Respondents
Criminal Appeal Nos. 792-793 of 1994
With
Criminal Appeal Nos. 794-795 of 1994
Decided on 1-10-2002
Counsel for the Parties :
For the Appearing Parties : Jaspal Singh, Sr. Advocate, Vipin Gogia, Mrs. Jaspreet Gogia, Sushil Kumar Jain, Bimal Roy Jad, R.K. Rathore, P.N. Puri, Sanjay Sarin and Ashok Mathur, Advocates.

IMPORTANT POINT
High Court s order of acquittal of both the accused cannot be interfered either on the prosecution story of joint assault on the deceased on accused Prem Singh s statement u/s 313 Cr.P.C. on the plea of exceeding the right of private defence.

Headnote:Indian Penal Code, 1860-Sections 302, 302/34 and 324-Offences under-Respondents convicted under but High Court acquitting-Appeals by complainant and State-High Court found unsound on minor aspects but right in over all reasoning-Accused 2 found falsely implicated-Accused 1 making statement u/s 313 Cr.P.C.-Pointing implication u/s 304 IPC in exceeding right of private defence-Whether can be acted upon to alter his conviction? (No)-Result-Both appeals dismissed (Cr.P.C. 1973-Section 313-Evidence Act, 1872-Sections 27-30).

       Held : Having gone through the evidence on record and considering the submissions made by the learned counsel, we have come to the conclusion that there is no case made out for this Court to interfere with the judgment of acquittal passed by the High Court. At some places, in the impugned judgment of acquittal the reasoning of the High Court may not be sound but on weighing the total evidence on record, in our considered opinion, the High Court committed no error in acquitting both the accused. There are several infirmities in the prosecution case. The evidence of alleged eyewitnesses does not inspire confidence. At about 8 O clock in the night, their version is that they were following the deceased on way to the village. Their subsequent conduct in not intervening in the attack or rushing to the village for help is unnatural. Their testimony has rightly been found unreliable. The entry in the register of the Out Door Department of the hospital, has been found to have been tampered which supports the defence case that only in order to prove the presence of the two eye witnesses, interpolations were made in the hospital records. The delay, in recording of FIR has been explained on lame excuses such as the Head Constable carrying report to the magistrate was held up because of the break down of his motorcycle and the magistrate was asleep when he contacted him at his residence. These circumstances clearly indicate that there was no prompt lodging of the report of the incident by the two witnesses PW6 and PW7. Hence their presence at alleged date and time of incident is highly doubtful. The prosecution is guilty of fabricating false evidence of extra judicial confession and recovery of the weapons used by the accused. So far as Deepinder Singh, accused No.2 is concerned, he has been falsely implicated. He had no motive of committing murder of the deceased. He is alleged to have caused one simple injury to the deceased. There is no evidence why he should join the co-accused in opening a brutal attack on the deceased. The defence plea taken by him that he was falsely implicated because of some pending civil dispute with PW7, Sardara Singh concerning use of a path, appears to be plausible. (Paras 23 and 24)

       In this case in hand, we have agreed with the conclusion of the High Court that the prosecution has failed to prove the genesis of the crime and the nature of the incident. The version of the alleged eye-witnesses, the evidence of extra judicial confession and recoveries of weapons have been found to be untrustworthy. (Paras 28)

       Held on statement of A1 u/s 313 Cr.P.C.: The statement of accused No. 1-Prem Singh recorded in his examination under Section 313 of Cr.P.C constitutes his defence plea. He stated that he was attacked by the deceased along with his associate whereupon the villagers rushed and caused injuries to the deceased. The evidence led by the prosecution having been rejected by this Court, the defence set up by accused - Prem Singh cannot be discarded as wholly improbable. The statement of accused under Section 313 of Cr. P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (Supra) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 of Cr.P.C. cannot be made the sole basis of his conviction. In the present case, the exculpatory part of statement of the accused under Section 313 of Cr.P.C. in which he stated that he was attacked by the deceased and his associate, whereupon the villagers rushed for his help and inflicted injuries on the deceased, cannot be outright rejected as false. The inculpatory part of his statement under Section 313 of Cr.P.C., therefore, to the extent of admission of his presence in the compound of Atma Singh when the deceased was attacked, cannot form sole basis of his conviction. The alternative submission made by the learned counsel on behalf of the complainant that on basis of the statement of the accused - Prem Singh under Section 313 of Cr.P.C., is liable to be convicted for exceeding his right of private defence under Section 304 of IPC, cannot be accepted for the reasons mentioned above. (Paras 29, 30, 31 and 32)

       Held thereafter : So far as case against the co-accused-Deepinder Singh is concerned, since we have not relied on the evidence of the prosecution that the two co-accused had made a joint assault on the deceased, he cannot be convicted under Section 302 with the aid of Section 34 of IPC for his alleged common intention with the co-accused Prem Singh. (Para 33)

       Held finally : We thus, find no ground to interfere with the verdict of acquittal passed by the High Court in favour of both the accused. In the result, we dismiss both the appeals. Bail-bonds furnished by the respondent-accused are discharged. (Para 34)